9911796707
TMI Blog1993 (3) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... are manufactured at Indore in the State of Madhya Pradesh and are despatched to Orissa where the petitioner is a registered dealer under section 9A of the Act. With effect from April 5, 1986, "pesticides" were notified to be exempted from levy of sales tax by the State Government in exercise of power under section 6 of the Act. The petitioner while submitting returns for the periods 1989-90, 1990-91 and quarter ending June, 1990, neither collected any sales tax nor paid any Orissa sales tax in respect of the goods and the Sales Tax Officer completed the assessment for the year 1989-90 under section 12(4) of the Act accepting the petitioner's turnover as well as accepting the petitioner's claim that mosquito repellant mat is tax-free. But on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November 17, 1992. The assessing officer came to hold that though the dealer claimed deduction towards sale of mosquito mats (repellants) which the dealer treats as an item free of tax, but mosquito repellant is "insecticide" and is subject to tax at the rate of 12 per cent. He also held that for earlier year 1990-91, the assessee had been so taxed and that assessment has been confirmed by the appellate authority. Accordingly, he determined the gross turnover and taxable turnover and called upon the assessee to pay the balance amount of tax of Rs. 2,43,548.18. The said order of the assessing officer is annexed as annexure 4. So far as the appeals against the orders of assessment for the years 1989-90 and 1990-91 are concerned, these appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to assessment years 1989-90 and 1990-91 being further available to be remedied by way of second appeal before the Sales Tax Tribunal, this Court should not invoke its extraordinary jurisdiction by entertaining a writ application. As has been held by the Supreme Court as well as this Court in several cases, availability of an alternative remedy does not oust the jurisdiction of this Court under article 226 of the Constitution and this Court applies a self-imposed restriction to entertain a writ petition when an alternative remedy is available under the statute. But where the question involved is a pure question of law and does not depend upon any factual determination, this Court never hesitates to entertain the question and decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority in his order dated September 18, 1992, in disposing of the appeals as per annexure 2 had indicated that to give relief to the agriculturists "pesticide" was withdrawn and was made tax-free with effect from April 5, 1986, but no material could be produced before us by the learned counsel appearing for the Revenue to indicate the aforesaid intention in the notification of exemption. In other words, the aforesaid observation of the appellate authority is based on no evidence. The ordinary meaning of the word "pest" as given in Chamber's Twentieth Century Dictionary is: "Any deadly epidemic disease; plague anything destructive; any insect, fungus, etc., destructive of cultivated plants:......." and the meaning of the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners. It has also been stated in the aforesaid book that many species of insects are important pests which affect almost all of men's activities and there are well over one million known species of insects in the world, but very small percentage of these are considered as economically important pests. The expression "pesticide" has been defined in the aforesaid book in the "Glossary for Pesticide Users" as follows: "Pesticide (economic poison)-As defined under the Federal Insecticide, Fungicide, and Rodenticide Act, economic poison (pesticide) means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, nematodes, fungi, or weeds, or any other forms of life declared to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides" would be entitled to the exemption from levy of tax in view of the notification of the State Government under section 6 of the Orissa Sales Tax Act and since the appellate authority has come to the conclusion that the goods manufactured by the assessee are "insecticide", the said item is entitled to exemption in question. We would accordingly set aside the orders passed by the assessing authority as also the appellate authority in relation to assessment years 1989-90 to 1991-92 and direct that the assessing officer should make a fresh assessment bearing in mind the law laid down by us in this judgment. The writ application is accordingly allowed. There will, however, be no order as to costs. B.N. DASH, J.-I agree. Writ petition allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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